RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume VII, Issue 396, 3 October 1874, Page 3

RESIDENT MAGISTRATE'S COURT, LAWRENCE.

Fbiday, 2nd October. (Before E.JH. Carew, Esq., R.M.) Halley v. Chaplin.— -Mr. M'Coy for the plaintiff. The summonses in this case had not been served. A fresh one was applied for without coats for Friday next. The application was granted. Cox v. Russell. — The defendant, a miner at Waipori, was summoned to answer a claim of £2 12. The BUmmons was not served within "two clear daya of the day of hearing. Case struck out. Michael y. Hogg.— Claim of £14 13s. 9d., half cost of boundary fence. Mr. Henderson for the plaintiff ; Mr. M'Coy for the defendant The evidence for the plaintiff occupied jjh& greater part of the day. The defendant, '^Ijefore calling his evidence, raised some legal point 9, and the plaintiff elected to take a nonBiiit. Non-suited accordingly, with pro- * fessional costs, 215. ; and witnesses' expenses, 30s. His Worship gave decision on the points ra'i«l as follows : — The plaintiff sues defendant to recover the half cost of fencing between their land. There is evidence of certain agreements between the parties, which led to the construction of a fence near to the same line, at a previous period ; but it will be necessary to judge of the effect of these agreements only in the event of the 'plaintiff having proved a sufficient case for me to call upon the defendant to answer it. The only right to recover the half cost of fencing would be under the provisions of the Fencing Ordinance, or proof of a contract to that effect. To recover under the Ordinance, it' is necessary to show r at least a substantial compliance with those provisions of the Ordinance which gave a right to erect a fent # c and charge the adjoining occupier. In thia case there is proof of service of a notice to fence, ■ the 29th September, 1873, and I think ,the form of the notice is sufficient : but section 62 of the Ordinance gives a right for. the person giving notice to erect a fence without agreement brilyjifter the expiration of two months. this case the evidence for plaintiff has proved that the erection of the fence . was' commenced before the expiration of two months, and therefore he has not complied with the Ordinance. It has been argued that •as evidence has been given that defendant said he would take no notice of the request to

fence, the plaintiff was justified in taking that to be conclusive ; but my opinion is that he had the whole of two months to come to a conclusion given him by the Ordinance, and that the plaintiff had ho right or power to reduce the time. There is some evidence of an agreement of defendant to pay plaintiff the half coßt of putting lip a good fence j but it Beemß to be moro in the nature of an offer by defendant to plaintiff than an accepted offer, as it took place some three months before the date of the notice to fence.